La Buhn v. Bulkmatic Transport Co.

• Decision Date: 30 September 1986
• Docket Number: No. 86 C 3474.,86 C 3474.
• Citation: 644 F. Supp. 942
• Parties: Joe LA BUHN, Plaintiff, v. BULKMATIC TRANSPORT CO., Defendant.
• Court: U.S. District Court — Northern District of Illinois

644 F. Supp. 942

Joe LA BUHN, Plaintiff, v. BULKMATIC TRANSPORT CO., Defendant.

No. 86 C 3474.

United States District Court, N.D. Illinois, E.D.

September 30, 1986.

L. Steven Platt, Arnold and Kadjan, Chicago, Ill., for plaintiff.

Lawrence C. DiNardo, James P. Osick, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Joe La Buhn ("La Buhn") initially sued Bulkmatic Transport Company ("Bulkmatic") in the Circuit Court of Cook County, Illinois, claiming Bulkmatic had fired him in retaliation for (1) his complaints about unsafe working conditions and (2) his successful exercise of a contractually guaranteed right to grieve an earlier discharge. Bulkmatic promptly removed the action to this District Court on the ground La Buhn's claim necessarily arose under (and was preempted by) Labor Management Relations Act § 301 ("Section 301"), 29 U.S.C. § 185.

Now Bulkmatic has moved for dismissal under Fed.R.Civ.P. ("Rules") 12(b)(6) and 12(b)(1).¹ For the reasons stated in this memorandum opinion and order, La Buhn's claims are dismissed — one of them (the safety-related claim) without prejudice.

Facts²

La Buhn drove one of Bulkmatic's trucks (¶ 1). On September 24, 1983 he delivered a load of anhydrous sodium metasilicate ("Silicate Soda") to Overdale, one of Bulkmatic's customers (¶ 2). Though he observed appropriate safety precautions, he was exposed to Silicate Soda dust during the unloading process and became ill (¶¶ 5-6). That exposure was caused by (1) a defect in Bulkmatic's truck and (2) unsafe conditions at Overdale's receiving facility (¶¶ 7-8). La Buhn complained about the unsafe situation, and Bulkmatic took him off the Overdale route (¶ 9).

On August 30, 1984 Bulkmatic reassigned La Buhn to Overdale deliveries (¶ 10). After another exposure to Silicate Soda dust, La Buhn lodged a second complaint about Overdale's unsafe conditions, but Bulkmatic kept him on the route (¶¶ 11-12). Bulkmatic also sent La Buhn to make Silicate Soda deliveries to two other customers where unsafe conditions existed, and La Buhn was again exposed to harmful dust (¶¶ 13-14, 16-17). When he complained about each of those places, Bulkmatic was similarly unresponsive (¶¶ 15, 18). Nor did Bulkmatic take any steps to address La Buhn's general complaints about the lack of safety precautions afforded him and his fellow drivers (¶ 19).

Bulkmatic fired La Buhn in February 1985 — La Buhn says that was in retaliation for his complaints (¶ 20). However, he was reinstated by a union grievance panel (id.). Bulkmatic fired La Buhn again in February 1986, and that termination was upheld by the union grievance panel (id.; Removal Petition ¶ 2(f)).

La Buhn then sued in the state court, claiming (¶ 22):

Defendant's acts in terminating Plaintiff in retaliation for complaining about the unsafe conditions then and there existing with regard to the loading and unloading of a dangerous chemical, namely silicate soda, or alternatively, for exercising his contractually guaranteed right to grieve his discharge in February, 1985 were intentional and wilful.

According to Removal Petition ¶ 2 La Buhn omitted several facts from his Complaint:

1. Bulkmatic is an employer in an industry affecting commerce.

2. La Buhn was a member of International Brotherhood of Teamsters Local Union No. 705 ("Union").

3. Bulkmatic and Union were parties to a collective bargaining agreement ("CBA"),³ which governed the terms and conditions of La Buhn's employment.

4. Under the CBA, arbitration was the mandatory and exclusive grievance procedure for employee challenges to Bulkmatic's disciplinary actions.

Opposing Contentions of the Parties

Bulkmatic presents alternative grounds for dismissal:

1. La Buhn's attempt to state an action for retaliatory discharge under Illinois law is defeated by Section 301's preemptive effect. Thus:

(a) La Buhn's action was properly removed to this District Court, for it arises under federal law.

(b) La Buhn has failed to state a claim under Section 301, for his exclusive CBA remedy is the arbitral grievance procedure, in which his requested relief has already been denied.

(c) La Buhn can state no direct Section 301 claim against Bulkmatic, for he has not charged Union breached its duty of fair representation.

2. Bulkmatic's action toward La Buhn was (if anything) an unfair labor practice under National Labor Relations Act §§ 7 and 8 ("Sections 7 and 8"), 29 U.S.C. §§ 157 and 158. Such claims are within the NLRB's exclusive primary jurisdiction.

For his part La Buhn urges this action was improperly removed and should be remanded to state court because, he says:

1. Illinois' retaliatory-discharge tort is independent of the CBA and is thus not preempted by Section 301, so this action does not arise under federal law.

2. Nothing charged in the Complaint amounts to an unfair labor practice within NLRB's primary jurisdiction.

As to his Section 301 argument, La Buhn says nothing about (1) the preclusive effect of the CBA grievance procedure or (2) the absence of a duty-of-fair-representation claim. He stakes his whole fate on his argument that removal was improper.

Section 301 Preemption

Under 28 U.S.C. § 1441(a) ("Section 1441(a)") a state-court defendant may remove to federal district court:

any civil action ... of which the district courts of the United States have original jurisdiction....

Absent diversity of citizenship between the parties (none is alleged here), that means a removable action must state a federal-question claim. La Buhn's state-court Complaint says nothing about a claim "arising under the Constitution, laws, or treaties of the United States" — 28 U.S.C. § 1331's definition of a federal question.

Under well-established jurisdictional principles (Orsini v. Echlin, Inc., 637 F.Supp. 38, 39 (N.D.Ill.1986), adapted to this case):

1. La Buhn is master of his own claim for purposes of determining federal jurisdiction. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913).

2. Bulkmatic thus cannot rely on its potential federal-law defense as a basis for removal. Tennessee v. Union & Planters' Bank, 152 U.S. 454, 461-62, 464, 14 S.Ct. 654, 656-57, 658, 38 L.Ed. 511 (1894)....

But it is equally fundamental that a state-court plaintiff cannot defeat defendant's Section 1441(a) removal right "by omitting to plead necessary Federal questions in a complaint ..." (Franchise Tax Board of California v. Construction Laborers Vacation Trust of Southern California, 463 U.S. 1, 22, 103 S.Ct. 2841, 2853, 77 L.Ed.2d 420 (1983)). In that sense "necessary" federal questions exist where federal law has wholly preempted any possible state-law cause of action, making plaintiff's suit one arising under federal law willy-nilly (id. 23, 103 S.Ct. 2853; Graf v. Elgin, Joliet & Eastern Railway Co., 790 F.2d 1341, 1345 (7th Cir.1986)). Consequently if La Buhn's retaliatory discharge suit states a cause of action preempted by Section 301, it was a suit "of which the district courts of the United States have original jurisdiction" and was properly removed.

Section 301 has created a fertile field for preemption arguments. As Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 1910-11, 85 L.Ed.2d 206 (1985) (footnote omitted) said:

Section 301 of the LMRA states:

"Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction of the parties...."

29 U.S.C. § 185(a). In Textile Workers v. Lincoln Mills, 353 US. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), the Court ruled that § 301 expresses a federal policy that the substantive law to apply in § 301 cases "is federal law, which the courts must fashion from the policy of our national labor laws." Id., at 456, 77 S.Ct., at 918. That seminal case understood § 301 as a congressional mandate to the federal courts to fashion a body of federal common law to be used to address disputes arising out of labor contracts.

The pre-emptive effect of § 301 was first analyzed in Teamsters v. Lucas Flour Co., 369 U.S. 95, 103, 82 S.Ct. 571, 576, 7 L.Ed.2d 593 (1962), where the Court stated that the "dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute so that issues raised in suits of a kind covered by § 301 are to be decided according to the precepts of federal labor policy." The Court concluded "that in enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules." Id., at 104, 82 S.Ct., at 577.

* * * * * *

For those reasons the Court in Lucas Flour held that a suit in state court alleging a violation of a provision of a labor contract must be brought under § 301 and be resolved by reference to federal law. A state rule that purports to define the meaning or scope of a term in a contract suit therefore is preempted by federal labor law.

Lueck, 105 S.Ct. at 1911-12 (footnotes omitted) went on to shape the scope of Section 301's preemptive force:

Of course, not every dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is pre-empted by § 301 or other provisions of the federal labor law. Section 301 on its face says nothing about the substance of what private parties may agree to in a labor contract. Nor is there any suggestion that Congress, in adopting § 301, wished to give the substantive provisions of private agreements the force of federal law, ousting any inconsistent state regulation. Such a rule of law would delegate to unions and unionized employers the power to exempt themselves from whatever state labor standards they disfavored. Clearly, § 301 does not grant the parties to a collective-bargaining agreement the ability to contract for

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